McGuireWoods Trio Analyzes Challenges to AKS “Safe Harbor Provision”

February 29, 2024

Defendants charged with violating the federal Anti-Kickback Statute (AKS) are likely to keep challenging the law’s constitutionality despite two recent rulings rejecting such arguments, McGuireWoods’ Renee Kumon, Brett Barnett and Timothy Fry wrote in a Feb. 1, 2024, Westlaw Today article. The analysis was originally posted on The FCA Insider, a McGuireWoods blog.

The AKS makes it a crime to give or receive payment in exchange for a referral for healthcare services paid for by a federal program. Recent challenges to the constitutionality of Congress’ delegation of authority to promulgate safe harbors to the AKS have failed.

But the authors, members of McGuireWoods’ Healthcare Department, wrote: “Notwithstanding at least two opinions against this argument, more non-delegation doctrine-based arguments may expand into other challenges of government authority. . . . [W]e expect future defendants may continue to challenge delegation, hoping the Safe Harbor delegation would not be severable from the rest of the statute.” And such challenges may focus on U.S. Supreme Court Justice Clarence Thomas’ recent FCA concurrence questioning whether qui tam provisions are constitutional.

“Though it is unclear whether these doctrinal challenges to constitutional authority will persuade any courts, they present an interesting argument for law school professors and legal professionals alike, and hold open a possibility for criminal defendants prosecuted/convicted under the AKS,” the authors wrote.